Sanderson v. McManus

Factual and Procedural Background

The Appellant, an unmarried father, raised an action in the Sheriff Court in The City seeking access to his son, born on 11 April 1989. The Respondent (the child’s mother) opposed access on welfare grounds. Interim access was granted but a final decision of 19 August 1993 by the Sheriff found that continued access was not in the child’s best interests, terminating all contact.

The Appellant appealed sequentially:

• 28 January 1994 – The Sheriff Principal heard additional evidence (including an incident on 31 July 1993) and affirmed the Sheriff’s decision (1994 S.C.L.R. 537).
• 13 July 1995 – An Extra Division of the Court of Session (Judges Weir and Brand, Judge McCluskey dissenting) refused a further appeal (1996 S.L.T. 750).
• The present appeal to the House of Lords was limited to questions of law by virtue of section 32(5) of the Court of Session Act 1988.

By the time of the hearing the child had not seen the Appellant for over three years and was approaching eight years of age.

Legal Issues Presented

1. Whether, under section 3(2) of the Law Reform (Parent and Child) (Scotland) Act 1986, the welfare of the child as the “paramount consideration” leaves any residual presumption in favour of maintaining natural parent-child contact and where the onus of proof lies.
2. Whether the lower courts erred in law by giving any weight to statements made by the child that were inadmissible as proof of their truth (hearsay), when assessing the child’s welfare.

Arguments of the Parties

Appellant's Arguments

• The intrinsic value of the natural link between parent and child requires the court, when matters are evenly balanced, to order access; failing to do so misapplies section 3(2).
• The burden should lie on the Respondent to demonstrate “very strong reasons” before that link is severed.
• The child’s out-of-court statements, being hearsay and inadmissible as to their truth, ought to have been wholly disregarded; any reliance on them constituted legal error.

Respondent's Arguments

• Section 3(2) imposes a single test: the welfare of the child. No legal presumption of parental access survives.
• The child’s spontaneous statements formed part of his observable behaviour; while not evidence of their contents, they were legitimately considered as indicators of the child’s state of mind.
• Two tiers of fact-finding judges had concluded that access was potentially harmful; an appellate court should not interfere absent an error of law.

Table of Precedents Cited

Court's Reasoning and Analysis

The House (Judges Goff, Mustill, Slynn, Hope and Clyde concurring) accepted all findings of fact, jurisdiction being limited to points of law.

1. Use of the Child’s Statements. The Court held that while the statements were inadmissible to prove their contents, evidence that the child spontaneously made such statements was not inadmissible. They formed part of the child’s overall behaviour and could legitimately “colour” other evidence. The lower courts had been entitled to consider them, provided they distinguished between the fact of the statements and the truth of what was said.
2. Interpretation of Section 3(2) of the 1986 Act. The statute makes the child’s welfare the paramount consideration and forbids an order unless the court is satisfied it is in the child’s interests. Any presumptive right of a natural parent to contact has been displaced. The applicant therefore bears an evidential burden to demonstrate benefit; after evidence is heard, decision turns on overall assessment, not formal onus.
3. No Error in Fact-Finding. Two tiers of trial judges, having seen and heard the parties, concluded access would be detrimental. Under the principles in Thomas v. Thomas, an appellate tribunal should not interfere without a demonstrable legal misdirection. None was found.
4. Practical Considerations. Years had elapsed; the child had had no contact with the Appellant since July 1993. If circumstances change, a fresh application at first instance—not prolonged appellate litigation—would be the proper route.

Holding and Implications

APPEAL DISMISSED. The interlocutor of the Court of Session was affirmed.

Immediate effect: the Appellant retains no right of access. Broader implications: the decision confirms that under Scottish law the welfare of the child is paramount; no presumption exists in favour of parental contact, and spontaneous statements by a non-testifying child may be weighed as part of behavioural evidence. No new cause of action or precedent was created, but the judgment consolidates existing authority on the welfare test and evidential treatment of children’s statements.